Summary
In Channel, the court denied summary judgment on a note which provided that the defendant owed the plaintiff an amount stated because the note was not an instrument for the payment of money as prescribed by CPLR § 3213.
Summary of this case from Slade v. NewmanOpinion
December 8, 1965
Sheldon J. Sanders for plaintiff.
George B. McPhillips for defendant.
Motion for an order for summary judgment in lieu of complaint pursuant to CPLR 3213 is denied. The plaintiff proceeds on a paper which is a bill or statement form of the defendant containing the words "We owe Channel Excavators" followed by an amount. This paper is unsigned. It is not an "instrument for the payment of money only" as prescribed by 3213 ( supra). To come within the section the instrument need not be a negotiable instrument ( Louis Sherry Ice Cream Co. v. Kroggel, 42 Misc.2d 21); however, the section was designed "to provide a speedy and effective means of securing a judgment on claims presumptively meritorious" where a formal complaint would be superfluous and it would be desirable to avoid delay. (4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3213.01.) Here, the determination of the action would depend upon proof of facts outside the instrument itself ( M. Gilston, Inc. v. Ullman, 45 Misc.2d 6). (See, also, Signal Plan v. Chase Manhattan Bank, 23 A.D.2d 636.)
Here, "the moving and answering papers do not define the issues satisfactorily." (4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3213.01.) The plaintiff shall serve its complaint within 20 days from the date of this order and the defendant shall interpose its answer 10 days after the date of the service of the said complaint.